FEDERAL COURT OF AUSTRALIA

Huang v Minister for Immigration & Multicultural Affairs [2001] FCA 353

MIGRATION – protection visas – whether Minister’s refusal to consider an application on the ground of invalidity is a ‘judicially reviewable decision’ within the meaning of Part 8 of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) s 47, s 48A, s475(1)(c), s 476, s 477, s 478(1)(b), s 478(2), s 485(1)

Soondur v Minister for Immigration & Multicultural Affairs [2001] FCA 124

Jayaweera v  Minister for Immigration & Multicultural Affairs [2000] FCA 955

Hocine v Minister for Immigration & Multicultural Affairs [2000] FCA 778

LU KA HUANG (BY HER NEXT FRIEND, HAO BIAO HUANG) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1363 of 2000

STONE J

SYDNEY

2 APRIL 2001

THE COURT ORDERS THAT:

1.                  the application be dismissed as incompetent;

2.                  the applicant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

1                     The applicant’s father, Hao Biao Huang (“Father”), applied to the respondent (“Minister”) for a protection visa on 4 March 1999 (“the First Application”). The application was made pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”). The Father’s two sons, Lu Ka Huang (the applicant) and Lu Bi Huang, were included in the application as members of the same family unit. The applicant’s mother, Zhong Lan Xie (“Mother”) was not included in that application. On 31 March 1999, a delegate of the Minister refused to grant protection visas pursuant to the First Application. That decision was upheld by the Refugee Review Tribunal on 1 September 1999.

2                     On 1 February 2000, the Mother lodged an application for a protection visa, including the Father, Lu Ka and Lu Bi in her application (“Second Application”). On 15 February 2000, a case officer in the Department of Immigration & Multicultural Affairs sent a letter to the Father, informing him that

·               as he and his sons had already applied for a protection visa, they could only be included in the Mother’s application if  the Minister exercised his discretion under s 48B of the Act in their favour; and

·               the case would not be referred to the Minister for consideration under s 48B of the Act because it did not satisfy the Minister’s Guidelines for Purported Further Applications for a Protection Visa subject to s 48B [sic] and Requests for Ministerial Intervention under s 48B.

3                     The Second Application, insofar as it related to the Mother, was considered by a delegate of the Minister on 16 February 2000. On that date, the delegate refused to grant a protection visa.

4                     On 1 August 2000, the applicant, Lu Ka Huang, applied to the Minister for a protection visa (“Third Application”). The Father, the Mother and Lu Bi Huang were also included in the Third Application as members of the same family unit. On the same day, the applicant was notified by letter that he was not at that time an applicant for a protection visa because he had already made an earlier application. On 3 October 2000, an officer in the Department for Immigration and Multicultural Affairs wrote a letter to the applicant, informing him that the case would not be referred to the Minister for consideration under s 48B of the Act because it did not satisfy the Minister’s Guidelines for purported further applications for a Protection visa subject to s 48A and request for Ministerial intervention under s 48B.

On 20 December 2000, the applicant filed an application in this Court for a review of the failure of the respondent to determine the Third Application. The application was made under s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds of the application for review are essentially that the First Application and the Second Application were not made by him and that, therefore, the Third Application is valid.

5                     On 29 March 2001, the respondent filed a notice of objection to competency claiming that this Court has no jurisdiction under the Judiciary Act 1903 (Cth)or the Administrative Decisions (Judicial Review) Act 1977 (Cth), to review the decision of the respondent to determine the application for a visa lodged on behalf of the applicant on 1 August 2000.  Mr Lloyd, counsel for the Minister, relied on s 485(1) of the Act. This section provides that the Federal Court does not have any jurisdiction in respect of “judicially - reviewable decisions or decisions covered by subsection 475(2) or (3), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.”

6                     The reference to “this Part” is a reference to Part 8 of the Act, which deals with review of decisions by the Federal Court.  Section 44 of the Judiciary Act 1903 (Cth) deals with the remittal of matters by the High Court to other courts and is not relevant here.

7                     In Mr Lloyd’s submission, the applicant is seeking to challenge the Minister’s decision as to the validity of the Third Application. Section 46 of the Act provides that an application for a visa is valid “if, and only if” the criteria set out in the section have been met. One criterion contained in sub-section (1)(d) is that the application must not be  prevented by s 48A.  This section provides that an applicant (who has previously made an application for a protection visa where the grant of the visa has been refused) may not make a further application for a protection visa.

8                     Mr Lloyd relied on Soondur v Minister for Immigration & Multicultural Affairs [2001] FCA 124 and Jayaweera v  Minister for Immigration & Multicultural Affairs [2000] FCA 955, to support his contention that the decision of the Minister that the applicant had not made a valid application is a judicially-reviewable decision covered by s 475(1)(c) of the Act.  As such, the 28 day time limit in s 478(1)(b) is applicable. The need for strict compliance with the 28 day time limit is established by s 478(2) which states:

“The Federal Court must not make an order allowing, or which have the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).

9                     Mr Atkins, counsel for the applicant, attempted to avoid this potentially fatal objection to the applicant’s claim by arguing that the decision of the Minister was not a judicially–reviewable decision.  His argument was based on a novel interpretation of s 47.  It is useful, in considering this argument, to set out the section in full.

“47 Consideration of valid visa application

            (1)        The Minister is to consider a valid application for a visa.

            (2)        The requirement to consider an application for a visa continues

                        until:

                        (a)        the application is withdrawn; or

                        (b)        the Minister grants or refuses to grant the visa; or

                        (c)        the further consideration is prevented by section 39

                        (limiting number of visas) or 84 (suspension of consideration).

            (3)       To avoid doubt, the Minister is not to consider an application

                        that is not a valid application.

            (4)       To avoid doubt, a decision by the Minister that an application

            is not valid and cannot be considered is not a decision to refuse to grant the visa.”

10                  Mr Atkins, counsel for the applicant, attempted to avoid this potentially fatal objection to the applicant’s claim by arguing that the decision of the Minister was not a judicially–reviewable decision.  His argument was based on a novel interpretation of s 47.  It is useful, in considering this argument, to set out the section in full.

11                  Mr Atkin argued that sub-section 2 makes it clear that the obligation to consider an application for a visa is a continuing obligation.  It continues despite a decision that an application is not a valid application provided that decision is incorrect.  Clearly, if the decision is correct then s 47(3) would have the consequence that the Minister’s obligation no longer continues. But, Mr Atkin submitted, if the Minister makes a decision that an application is not valid and this is an incorrect decision, then the obligation to consider the valid application still continues. In that case, he submitted, the applicant is entitled to apply for review under s 477 on the basis that the Minister, having a duty to make a judicially-reviewable decision, has not in fact done so and there has been unreasonable delay.

12                  Mr Atkin conceded that the authorities relied upon by the respondent created substantial obstacles to his clients claims succeeding.  In particular, the decision in Jayaweera v Minister for Immigration & Multicultural Affairs [2000] FCA 955 is relevant. This case concerned a decision of the Minister that the visa applications of two brothers were invalid. Heerey J held that the Minister’s decision was a judicially-reviewable decision within s 475(1)(c). Therefore an application to review it would fall within s476. Consequently the time limit in s 478(1) applied. Heerey J held that it is well established that the Court had no power to extend this time limit and referred to Hocine v Minister for Immigration & Multicultural Affairs [2000] FCA 778.

13                  In my opinion Jayawerra v Minister for Immigration and Multicultural Affairs [2000] FCA 955was correctly decided and constitutes an insuperable obstacle for the applicant.  I do not accept Mr  Atkin’s submissions, although I admire their ingenuity. Even if his analysis of s 47 is correct, which I doubt, the application would still be out of time. On Mr Atkin’s analysis, the Minister’s communication of his decision that an application is invalid would amount, in the case of a valid application, to a statement that the Minister does not propose to discharge the continuing duty under s 47. In my opinion, time would start to run under s 478 from the date of that decision, as extended by the time provided under the legislation for receipt of such communication.

14                  The objection as to competency is upheld. The application must be dismissed as incompetent. The applicant is to pay the respondent’s costs.

Associate:

Dated:              2 April 2001